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Mold Cases Are Back

By David Hershey-Webb of Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP posted in Tenants' Rights on Wednesday, May 9, 2012.

Like spores brought to life by a new leak, mold cases are back after 4 dormant years, due to the March 2012 Appellate Court decision of Cornell v. 360 West 51st Street Realty LLC.

Mold claims went dormant 4 years ago when the appellate court decided Fraser v. 301-52 Townhouse Corp., 57 A.D3rd 416 (2008), holding that, in that case, plaintiffs had not demonstrated causation between mold exposure and disease. Despite the "narrow" holding, its impact was broad. The mere handful of lawyers doing personal injury mold cases shrunk as the risk of taking mold cases was simply too great. Fraser effectively put the kibosh on mold personal injury claims and people with claims have had the unfortunate reality of losing health and home without compensation.

However, those of us representing tenants, shareholders and unit owners in damp buildings after Fraser were painfully aware that nothing had changed for the individual. People were still getting sick from the cocktail of mold, bacteria, dust mites and cockroach droppings present in damp buildings.

Advocates for individuals continued to strive to convince the court that mold was a serious issue. The facts were often obvious, like those present in Cornell: Brenda Cornell moved into her apartment located directly above a basement which was damp, musty and vermin infested. After a steam pipe broke in her apartment, a small amount of mold appeared in her bathroom. When she entered the bathroom, she began to feel ill, got a body rash, shortness of breath, fatigue, disorientation and headaches. Subsequent renovations in the basement resulted in Ms. Cornell's experiencing dizziness, chest tightness, congestion, shortness of breath, a rash, swollen eyes and a metallic taste in her mouth.

At one point, the landlord told her to wash the area with bleach, which she did and which temporarily helped her symptoms. (Mold remediation techniques vary, but courts generally adhere to the Department of Health guidelines and experts' opinions.)

We now have good news for individuals in damp buildings. Reinstating her complaint, the appellate court clarified in Cornell:

"The scientific evidence shows that exposure to molds, particularly the types of molds whose presence in plaintiff's apartment was confirmed by sampling...can cause the types of ill effects experienced by plaintiff."

The science has now been analyzed twice by the appellate court. Based on the number of ill people, particularly children, with ill effects in damp buildings-the court got it right the second time in Cornell. Will the personal injury lawyers now follow?